6.  The applicant was born in 1950 and lives in Sevastopol.
7.  The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.
8.  At the time of the events the applicant’s only son, Mr Denys Mosendz (“D.M.”), was performing mandatory military service with the Ukrainian Internal Troops, military unit no. 3007. He had been in the army for several months.
9.  On the night of 24 April 1999 D.M. was on guard duty. At 4.30 a.m. on 25 April he reported by radio that everything was calm. At 5 a.m. the soldier who was supposed to take over guard duty discovered that D.M. was missing from his post.
10.  On 25 April 1999 the Military Prosecutor for Ternopil Garrison (“the MPTG”) opened criminal proceedings against D.M. on suspicion of desertion from the army, violation of the statutory rules of guard duty and illegal handling of weapons.
11.  On the same date, at around 6.30 p.m., D.M. was found dead, with gunshot wounds to his head, about six hundred metres from his post, near the concrete fence surrounding an abandoned factory (as documented in the on-site inspection report). The weapons entrusted to him for guard duty – an AK-74 assault rifle, its two magazines (with ten and seven cartridges respectively) and a bayonet – were found near the body. Three empty cartridges were found nearby on the ground. A criminal investigation was opened into the death.
12.  The officer leading the search group, R., stated throughout the investigation and the trial (see also paragraph 42 below) that he had personally discovered D.M.’s body leaning against the factory fence. However, one of the soldiers in that group, B., submitted at a later stage that the body had been found about forty metres from the fence and that the soldiers had been trying to provide first aid to D.M. According to B., they had carried the body and had placed it down near the fence, having realised that D.M. was dead. This discrepancy in the statements remained unaddressed by the investigation.
13.  On 27 April 1999 D.M. was buried in the village of Balamutivka in Khmelnytskyy Region, where the applicant’s brother lived. The body was delivered there in a closed coffin. The funeral took place in the applicant’s absence and without her knowledge. According to the applicant, the military unit had informed her that D.M. had deserted from the army and had taken down the addresses of her various relatives. While she was on her way to the garrison to find out what had happened, D.M. was buried.
14.  On 7 May 1999 a post-mortem examination of D.M.’s body was completed. It discovered one gunshot entry wound in the middle of his forehead and two exit wounds in the right and the left parts of the skull, between the parietal and occipital areas. The entry wound was surrounded by a collar of bruising, indicating that the gun had been pressed against D.M.’s forehead. Noting that there was only one entry wound and two exit wounds, the expert concluded that at least two shots had been fired in a single round. Haematomas around the eyes and near the nose, explained by internal bleeding following the gunshots, were also noted. The wounds had been inflicted when the victim was still alive. No alcohol or drugs were detected in the body. Given that no other injuries or traces of a struggle were discovered, the conclusion was reached that D.M. had committed suicide.
15.  On 12 May 1999 a post-mortem psychiatric evaluation concluded that D.M. had not suffered from any mental disorder.
16.  On 25 June 1999 the MPTG closed the investigation on the grounds that the death had been a suicide and there was no case to be answered. The criminal proceedings against D.M. were discontinued for the same reason.
17.  On 5 October 1999 the General Prosecutor’s Office (“the GPO”) quashed both decisions of 25 June 1999 on the grounds, firstly, that the charges against the deceased had been unlawful and unfounded and, secondly, that the investigation into his death had not been sufficiently thorough.
18.  On 23 November 1999 an additional on-site inspection revealed three holes in the concrete fence near which the body of D.M. had reportedly been found.
19.  On 1 December 1999 the MPTG again closed the investigation on the grounds that there was no indication of a crime having been committed.
20.  On 21 February 2000 the GPO quashed that decision on the grounds that the investigation had been superficial and incomplete. It remained unclear from the records of the witnesses’ questioning whether there had been any blood at the scene, how D.M.’s clothes had looked and whether there had been any signs of the body having been dragged to the place where it had been found. Neither was it clear who had found the empty cartridges, and where.
21.  On 21 March 2000 a forensic chemical examination of the holes in the concrete fence near which the body of D.M. had reportedly been found was completed. Its conclusion was that the holes had originated from gunshots.
22.  On 13 April 2000 the MPTG again closed the investigation, having found that there was no case to be answered.
23.  On 5 September 2000 the Military Court for Lviv Garrison quashed that decision as premature. It criticised the investigating authorities for having confined themselves to the finding that D.M. had committed suicide, without investigating the possible reasons for that act.
24.  At some point the case was transferred to the Military Prosecutor for Lviv Garrison (“the MPLG”).
25.  On 29 December 2000 the MPLG closed the criminal investigation, having found that nobody was to blame for D.M.’s suicide.
26.  The case file contains copies of extracts from the records of interviews conducted on unspecified dates, according to which officers V.K. and V.S. (the senior lieutenant and squadron commander respectively) denied bullying or ill-treatment of D.M. by anybody. V.K. explained that, had that been the case, the commanding officers would definitely have known about it, and that D.M. had been the kind of person who could “stand up for himself”. V.S., in turn, expressed confidence that he had been well-informed about the state of morale in the squadron and said that he had not been aware of any bullying of D.M.
27.  On 1 August 2001 the GPO quashed the decision of 29 December 2000, finding that the investigation had been incomplete. The GPO pointed out that, although fifty-five people were supposed to have been questioned, in the end only five had been questioned, and none of D.M.’s army friends had been among them. Furthermore, it was unclear why it had taken so long to find the body. Lastly, the reasons for the suicide remained unclear.
28.  In February 2002 one of the soldiers mentioned during his questioning, and two other soldiers confirmed this, that D.M. had had a dispute with two sergeants, K. and V., before taking up guard duty on the night of 24 April 1999. They explained that D.M. had been late for drills, for which he had been criticised by the squadron commander. Sergeants K. and V. had then taken D.M., together with a private, So., to a separate room in the guardhouse, where they had stayed for around twenty minutes. When D.M. had returned from the room, he had looked agitated and had kept his head down. No visible injuries had been noticed on him.
29.  On 5 April 2002 another soldier, O., was questioned. He submitted that some senior sergeants had been supervising newly arrived soldiers. He noted that the sergeants had sometimes beaten junior soldiers, but that “it had been rare and not without reason; generally, it had been a punishment for some minor errors”. O. further noted that the sergeants would sometimes make junior soldiers clean the toilets with toothbrushes. He specified that “almost every soldier had gone through this”. However, O. considered that there had been no bullying as such.
30.  On 7 February 2003 So. explained that the sergeants had criticised him and D.M. for insufficient knowledge of the Military Forces Statute. In the separate room, K. and V. had put a copy of the statute on the floor and had forced So. and D.M. to read it and to do push-ups at the same time. At some point D.M. had collapsed. Sergeant V. had ordered him to continue and, when D.M. had failed to do so, V. had kicked him and struck him on the back. When leaving the room, D.M. had said to So.: “I’ll settle with them yet” («Я їм ще зроблю»). In response to a question as to why So. had been withholding this information for so long, he explained that the issue had concerned his superiors in the army, who had asked him to keep silent. He had been scared of them taking revenge and had only given statements once his army service was over.
31.  Relying on the aforementioned soldiers’ statements, on 29 November 2003 the Lviv Garrison Military Prosecutor’s Office (“the LGMPO”) opened a criminal case in respect of sergeants K. and V. on suspicion of aggravated abuse of authority (Article 424 § 3 of the Criminal Code – see paragraph 57 below).
32.  On 12 October 2004 the LGMPO ordered the exhumation of D.M.’s body, after the investigator discovered certain discrepancies between the findings of the post-mortem examination report of 7 May 1999 and the photographs of the body in the case file. In particular, one of the wounds referred to in the report could not be identified on the photographs.
33.  On 19 November 2004 a forensic psychiatric panel issued a report following a repeated post-mortem psychiatric evaluation of D.M.’s emotional condition prior to his death, which had been undertaken in the light of the information concerning his bullying by sergeants V. and K. It noted that D.M. had not suffered from any mental illness and that his behaviour had not disclosed any emotional or motivational problems. D.M. had been a calm, even-tempered, goal-oriented and independent person. The general conclusion was, however, as follows:
“The actions of the deceased [D.M.] are explained by adaptive reactions (minor non-psychotic disorders entailing changes in the emotional sphere – mood changes), which had a significant impact on his behaviour.
Given his particular psychological make-up, [D.M.] might have committed suicide ..., because the unlawful actions by the sergeants [V. and K.] had triggered [an] acute affective disorder of the anxio-depressive type (adjustment disorder).”
34.  On 25 December 2004 the forensic medical examination of the exhumed body was completed. The panel’s report stated that the initial examination of 7 May 1999 had failed to record a second gunshot entry wound above the right eyebrow of the deceased and had incorrectly located the two exit wounds. Referring to the body’s position, the length of D.M.’s arms and the technical characteristics of the AK-74 assault rifle, the panel confirmed the finding of suicide.
35.  On 5 January 2005 sergeant K. confessed that on the night of 24 April 1999 he had ill-treated D.M. (as described in paragraphs 28 and 30 above).
36.  On 20 January 2005 the investigator refused to institute criminal proceedings against senior officers V.K. and V.S. (see also paragraph 26 above), having discerned no corpus delicti in their actions. It was concluded that they had not personally bullied D.M. and had not instructed anybody to do so. This ruling was not challenged.
37.  On 31 January 2005 the applicant was granted the status of aggrieved party in the criminal proceedings against sergeants V. and K.
38.  On 23 February 2005 the criminal case in respect of sergeant V. was severed into separate proceedings because he had gone into hiding.
39.  On the same date a ballistics test of the three holes in the concrete fence, near which the body of D.M. had reportedly been found, established that the holes had not originated from gunshots.
40.  On 13 October 2005 the Lviv Garrison Military Court delivered a judgment in which it found sergeant K. guilty of bullying his subordinate, D.M., which had led to serious consequences, namely D.M.’s suicide. It mainly relied on the post-mortem psychiatric evaluation report, as well as the forensic medical examination of the exhumed body (see paragraphs 33 and 34 above). The court sentenced K. to a term of five years’ imprisonment, but suspended the sentence and put him on probation for three years. He was also stripped of his military rank (sergeant major). K. admitted that he had deprived D.M. of his rest period and had forced him to do push-ups because D.M. had displayed poor knowledge of the Military Forces Statute.
41.  Among the materials examined by the court was a letter written by D.M. to a friend on an unspecified date, in which he had described his army life as quite normal and had encouraged his friend not to seek to evade military service. While D.M. had mentioned that there was some “didivshchyna”[1] in the army, he had considered that generally he had nothing to complain about.
42.  The judgment also referred, inter alia, to the on-site inspection report, according to which D.M.’s body had been found leaning against the factory fence, as well as to B.’s statements, according to which the body had been discovered about forty metres from that fence. It did not comment on this discrepancy. The court also mentioned, without commenting on it, the ballistics test which had established that the three holes in the fence in question had not originated from gunshots (see paragraph 39 above).
43.  The judgment of 13 October 2005 was not challenged on appeal and became final.
44.  However, the investigation continued in respect of sergeant V., without any more specific information being available regarding its progress.
45.  On 16 September 2009 the Lviv Garrison Military Court delivered another judgment in respect of the case against sergeant V. It found V. guilty as charged (bullying of his subordinate, D.M., having led to serious consequences, namely D.M.’s suicide). V. was, however, relieved from criminal liability as the charge had become time-barred (more than ten years had elapsed). The case file before the Court contains no further details on this trial or on any evidence revealed in its framework.
46.  On 4 May 2006 the applicant lodged a civil claim with the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) against the Ministry of the Interior, seeking compensation for non-pecuniary damage. She alleged that it had failed to ensure law and order in its military forces, which had enabled the ill-treatment of her son and had led to his death.
47.  On 12 May 2006 the Pecherskyy Court refused to open proceedings on the grounds that the case fell to be examined within administrative rather than civil proceedings.
48.  The applicant lodged another claim with the Sevastopol Gagarinskyy Court (“the Gagarinskyy Court”), the court with jurisdiction over her place of residence.
49.  On 7 August 2006 the Gagarinskyy Court also refused to open proceedings. It noted that the civil case had emanated from the corresponding criminal proceedings, and invited the applicant to lodge a civil claim with the court in the jurisdiction where the tort was committed.
50.  On 12 October 2006 the Sevastopol Court of Appeal quashed the aforementioned ruling of 7 August 2006, finding that the claim lodged by the applicant had been administrative rather than civil and that she had correctly lodged it with the court having jurisdiction over her place of residence. The Court of Appeal also noted that the Gagarinskyy Court had incorrectly applied the rules of civil procedure.
51.  On 30 October 2006 the Gagarinskyy Court opened administrative proceedings concerning the applicant’s claim, having found that it fully complied with the requirements of the Code of Administrative Justice.
52.  On 9 December 2008 the Gagarinskyy Court allowed the applicant’s claim in part and awarded her 200,000 Ukrainian hryvnias (approximately 17,000 euros), to be paid by the Ministry of the Interior. Referring to sections 3(9) and 4(21) of the Regulations on the Ministry of the Interior of Ukraine of 9 October 1992 (see paragraph 56 below), the court concluded that the perpetration of the crime had been made possible by the Ministry of the Interior’s inactivity and its careless fulfilment of its duties. In particular, the failure to ensure law and order in the army had created the conditions for the abuse of power by army officials, which had led to the death of the applicant’s son. The court noted:
“... the defendant deliberately avoided ensuring legality in the activities of [its] servicemen. The defendant could not have been unaware that this obligation was not being implemented, given that such cases were numerous. Neither could the defendant have remained in ignorance of ... the potential of its failure to ensure law and order to trigger anti-social and dangerous actions. It was because of the failure of the Ministry of the Interior to ensure law and order [in the army] that [the applicant] lost her only child.”
53.  On 18 June 2009 the Sevastopol Administrative Court of Appeal quashed the decision of 9 December 2008 and terminated the proceedings on the grounds that the case fell to be examined within civil rather than administrative proceedings.
54.  On 18 October 2011 (that is, after the Government had submitted their observations on the admissibility and merits of the case – see paragraph 5 above) the Higher Administrative Court upheld that ruling.